SUPREME COURT OF INDIA
Shyamali Das
Vs
Illa Chowdhry and Others
Appeal (Civil) 4632 of 2006 (Arising Out of S.L.P. (Civil) No.18012 of 2006 @ Cc No. 3531 of 2006)
(S. B. Sinha and Markandeya Katju (Cj), JJ)
01.11.2006
S. B. SINHA, J.
Delay condoned.
Leave granted.
This appeal is directed against a judgment and order dated 30th September, 2005
passed by a learned Single Judge of Calcutta High Court in C.O. No. 347 of 2005
whereby and whereunder the revision application filed by Respondent No. 1
herein from a judgment and order dated 26th August, 2005 was allowed.
Appellant and Respondent No. 3 claimed themselves to be the heirs and legal
representatives of Rani Rashmoni. The appellant states that after demise of
Rani Rashmoni, the entire estate comprising Touzi No. 145 devolved upon Raja
Amrita Nath Das. Upon his demise, the property devolved upon his four sons
where after a partition took place amongst his legal heirs.
A part of Tauzi No. 145 was admittedly acquired in the year 1993 for
construction of housing estate by the West Bengal Housing Board. Name of
Respondent No. 1 herein admittedly appeared in the record of rights. She was
given notice of acquisition. Possession of the land was taken from the
respondent on 16.07.1997. An award was made by the Land Acquisition Collector
on 26.11.1998. Dissatisfied with the said award passed by the Collector, the
respondent made a request to the Collector to make a reference in terms of
Section 18 of the Land Acquisition Act, 1894 (for
short "the Act"); pursuant whereto or in furtherance whereof a
reference was made on 18.02.1999. Some other references were also made at the
instance of Respondent No. 1 which were registered as L.A. Case Nos. 3 to 35,
38 and 39 of 2001.
On or about 15.09.2000, the appellant filed a purported public interest
litigation before the High Court of Calcutta which was marked as writ petition
No. 14842 of 2000 challenging the acquisition of land and change in the names
of the owners thereof in the record of rights. By an order dated 15.09.2000,
the said writ petition was dismissed as withdrawn.
The appellant filed a suit bearing suit No. 57 of 2001 claiming title over the
said property on 7.09.2001 in the Court of 9th Civil Judge, Sr. Division inter
alia for passing a decree for mandatory injunction restraining the defendants
therein from taking any money from the Land Acquisition Collector and for
declaration that the appellant was the rightful owner of the properties
described in the Schedule appended thereto and also for a decree for recovery
of possession. The said suit is still pending.
Although an award had been made, the appellant filed two applications, one
under Sections 11 and 11-A of the Act on 5.08.2004 before the Collector and
another under Sections 5 and 5-A thereof objecting to the acquisition of the
land thereby. Concededly, the said applications were not maintainable at that
stage.
She filed an application under Order I, Rule 10(2) of the Code of Civil
Procedure praying for her impleadment in the reference proceedings inter alia
on the premise that she had filed the aforementioned suit No. 57 of 2001. The
said application was dismissed by an order dated 22.06.2004 by the learned Land
Acquisition Judge opining that she was not a 'person interested' within the
meaning of Section 3(b) of the Act. It was held that as the jurisdiction of the
reference court arises out of the order of reference, the provisions of Order
I, Rule 10 (2) of the Code of Civil Procedure was not maintainable. The
correctness or otherwise of the said order has not been questioned and, thus,
it attained finality.
She also filed a writ petition in the High Court at Calcutta which was marked
as Writ Petition No. 1928 of 2000. A learned Single Judge of the said High
Court opined:
"This Court sitting in writ jurisdiction cannot determine the
entitlement to the compensation awarded. Therefore, if the petitioner is
aggrieved, it is open to her to apply before the collector for reference under
section 30 read with section 31 of the Land Acquisition Act if she is so
advised. Section 30 does not postulate any time limit and as such it can be
made at any point of time if such application is made, the collector may decide
the same and pass appropriate order on the said application in accordance with
law. I (sic) necessary, by making reference under the provision of section 30
and may also resort to section 31 if she is so advised according to his own
wisdom and discretion after having examined the dispute raised that there are
prima facie dispute existing which required to be examined. In such
circumstances, the collector is not entitled to adjudicate the dispute which is
the subject matter of adjudication by a court, it is only to say that there is
no prima facie case raising any dispute and if prima facie case exists then he
has to make the reference under section 30 read with section 31. This decision
is to be taken before further disbursement is made. The collector will also
hear the other no appear (sic) respondents whom the petitioner will serve a
copy of this order along with a copy of the writ petition within a period of
one week from date, in default, this order will stand recalled."
It is not in dispute that no such application was filed by her under the said
provisions. She, thus, did not avail the opportunity to take recourse to law.
She filed another application for grant of probate which was marked as OS No. 1
of 2006. An order under Order VII, Rule 11 of the Code of Civil Procedure was
passed in relation thereto by the learned Addl. District Judge at Alipore
holding it to be frivolous in nature stating:
"The plaintiff herself stated that the original Will is allowed in
connection with case no. 33 of 1961, District Delegate Judge, Alipore. In this
connection the Ld. Lawyer for the defendants referred a decision reported in 73
CWN 820 wherein it has been held that the Will in question and for which the
present suit filed by the defendant granting probate is forged i.e. the alleged
Will made by testator Amrita Nath on 17th April, 1921
It is very funny thing that the plaintiff prayed for granting letter of
administration of the Will estate under the said Will in respect of the
properties and securities and other assets particularly mentioned in the
schedule A, B and C in favour of the plaintiff but nowhere in the plaint about
any whispering about the Will when it was made and also the plaintiff did not
mention 'C' schedule in the plaint.
Considering the above facts and circumstances and the evidence on record I am
of opinion that even if all averments in the plaint are accepted in toto, does
not disclose any clear right to sue and not possible to grant any relief as
sought for and I am also further observed that the suit is frivolous and not on
the facts of it can be decided by this Trial Court to avoid arduous procedure
for trial as such the present petition filed by the defendant to decide the
maintainability of the suit as a preliminary issue is justified and answered
against the plaintiff."
Her application before the revenue authorities, however, succeeded in 2005.
Operation of the said order, however, was stayed by the High Court. Relying on
or on the basis of the said purported subsequent event, another application was
filed by the appellant herein for her impleadment in the reference proceeding.
The reference cases were allowed by the learned Special Land Acquisition Judge
by judgment and award dated 26th August, 2004. An application was filed by the
appellant for setting aside the said judgment of the Land Acquisition Judge.
The said application was entertained and a miscellaneous case was directed to
be registered. By an order dated 12th September, 2005, a direction was made
that payments with regard to LA case No. 3 to 33, 38 and 39 be kept in abeyance
until further orders.
Respondent No. 1 moved an application before the learned Special Judge on 12th
September, 2005 whereupon the earlier order was clarified stating that the same
would not affect the process of depositing of compensation amount in court. An
application was filed to vacate the ex- parte stay but the same was refused by
an order dated 17th September, 2005.
The applications filed by Respondent No. 1 under Article 227 were allowed by
reason of the impugned judgment.
Mr. Uday U. Lalit, learned senior counsel appearing on behalf of the appellant,
submitted that she should be given an opportunity to get her title in respect
of Touzi No. 145 adjudicated at some forum. Having regard to the subsequent
events, viz., correction of the revenue records in the year 2005 and keeping in
view of the fact that the aforementioned title suit No. 57 of 2001 is still
pending, the High Court, it was urged, committed a serious error in passing the
impugned judgment. It was submitted that unless some protection is afforded to
the appellant by imposing conditions in regard to the withdrawal of the amount
deposited by the Land Acquisition Collector, it would not be secured.
Mr. Bijan Kumar Ghosh, learned counsel appearing on behalf of Respondent No. 1,
on the other hand, supported the impugned judgment.
The Act is a complete code by itself. It provides for remedies not only to
those whose lands have been acquired but also those who claim the awarded
amount or any apportionment thereof. A Land Acquisition Judge derives its
jurisdiction from the order of reference. It is bound thereby. Its jurisdiction
is to determine adequacy or otherwise of the amount of compensation paid under
the award made by the Collector. It is not within its domain to entertain any
application of pro intersse suo or in the nature thereof.
The learned Reference Judge, therefore, was entirely correct in passing its
order dated 22.6.2004. A finding of fact was arrived at therein that the
appellant was not a party interested in the proceeding within the meaning of
Section 3(b) of the Act. The said order attained finality. It could not have,
thus, been reopened. Another application for impleadment, therefore, was not
maintainable. It may be true that in the proceeding of a suit, the court can in
a changed situation entertain a second application under Order I, Rule 10(2) of
the Code of Civil Procedure. But, the learned Reference Judge having opined,
while passing its order dated 26.2.2004, that the appellant was not a person
interested, in our opinion, a second application despite the subsequent event
was not maintainable.
It is one thing to say that a proceeding under Sections 30 and 31 of the Act
was maintainable at the instance of the appellant. She was given an opportunity
to file the same by the Calcutta High Court in terms of its order dated
22.09.2000. She did not avail the said opportunity. Having not availed the
opportunity, in our opinion, she was not entitled to be impleaded as a party.
This Court had some occasion to consider the question as to who would fall
within the ambit of the term "person inherited".
In Sharda Devi v. State of Bihar and Another it was opined that a State
who claims ownership of the land in question was not a party interested
stating:
"If it was a government land there was no question of initiating the
proceedings for acquisition at all. The Government would not acquire the land,
which already vests in it. A dispute as to pre-existing right or interest of
the State Government in the property sought to be acquired is not a dispute
capable of being adjudicated upon or referred to the Civil Court for
determination either under Section 18 or Section 30 of the Act. The reference
made by the Collector to the Court was wholly without jurisdiction and the Civil
Court ought to have refused to entertain the reference and ought to have
rejected the same. All the proceedings under Section 30 of the Act beginning
from the reference and adjudicating thereon by the Civil Court suffer from lack
of inherent jurisdiction and are therefore a nullity liable to be declared
so."
In Prayag Upnivesh Awas Evam Nirman Sahkari Samiti Ltd. v. Allahabad Vikas
Pradhikaran and Another , this Court opined:
"It is well established that the reference court gets jurisdiction only
if the matter is referred to it under Section 18 or 30 of the Act by the Land
Acquisition Officer and that civil court has got the jurisdiction and authority
only to decide the objections referred to it. The reference court cannot widen
the scope of its jurisdiction or decide matters which are not referred to
it"
We may also notice that prima facie the appellant cannot be said to have any
right title and interest in the property but we do not intend to express our
final opinion thereupon as the matter is pending consideration before the Civil
Court.
A disputant is entitled to an interim order, provided he is a party thereto. If
for one reason or the other, he cannot be impleaded as a party to the
proceeding, the Court would have no jurisdiction to pass any interim order in
his favour.
If the impleadment application was not maintainable, it was, required to be
dismissed in limine. It could not have been entertained only for pressing an
interim order. Law does not contemplate exercise of such a jurisdiction by a
court of law. Any such order passed is coram non judice.
We, therefore, do not find any merit in this appeal. However, before parting
with this matter, we may only observe that although contention of Mr. Ghosh is
that the civil suit was not maintainable in view of a decision of this Court in
Laxmi Chand & Ors. v. Gram Panchayat, Kararia & Ors. , it is not
necessary for us to express any opinion thereupon. We may furthermore place on
record that a contention has been raised by Mr. Ghosh that the suit has been
dismissed. We in this matter are not concerned with the correctness or
otherwise of the said statement.
For the reasons aforementioned, the appeal is dismissed with costs. Counsel's
fee assessed at Rs. 10, 000/-.